Source: Blog do Fred - SP - 18/11/2009

The following essay, entitled “Never before in the history of this country, so much incentive to evade!”, Is by the Public Prosecutor Celso Antonio Três, from Santa Catarina. Inspired by President Lula's catchphrase, used whenever he introduces auspicious data from his government, the prosecutor imagined what it would be - in the light of our legal system (laws and jurisprudence of the upper courts of Brasilia) - the script for a presidential speech in a supposed meeting national anti-tax entrepreneurs, in short, tax evaders:

1º) Provides in the accounting the item “evasion”. If you are assessed in the brief five-year period (art. 156, V, of the National Tax Code) - the subordination of criminal jurisdiction to the administrative instance implies that the possibility of criminal action should be taken once the tax assessment decays (STF, HC 84555 / RJ , Min. Cezar Peluso, 07.08.07), just use the savings to get rid of, not only the tax evasion, but also for possible corruption (bribe) that you have offered to the tax authority (arts. 1, 2 and 3 of Law no. 8.137 / 90 and Article 34 of Law No. 9.249 / 95).

2nd) Arrest in the act ever! Whoever steals a chicken is subject to arrest in flagrante delicto (art. 301 of the CPP). The tax evader, never! The crime will only be consummated after the end of the interminable administrative-fiscal process (STF, HC 81611 / DF, 10.12.03, STF Newsletter No. 333). Impunity & tranquility! No apprehension (concern) with possible apprehension (search by court order) of the “corpus delicti” (box 2, parallel, false invoices, etc.). As long as the administrative instance has not been exhausted, the Judiciary Police, the Public Prosecutor's Office and the Judiciary will be inert, inert (STJ, HC 32.743-SP, - STJ Newsletter No. 296).

3rd) You don't even have to pay! Not to mention countless other extinguishing forms of tax credit (eg, prescription, decay, compensation due to various taxes allegedly improperly collected - Law 10.637 / 02 with retroactive effects: STJ, REsp 720.966-ES, STJ Newsletter No. 275), just in installments and punishment will be extinguished (STJ, RHC 11.598-SC, STJ Newsletter nº133). Once the punishment has been extinguished, the Public Treasury orders “to see ships”, allowing the rest of the installment to be honored by the “bishop”.

4th) No installments are necessary! Sufficient to the mere confession (art. 337-A, §1, of the Penal Code), the right of the tax evader who, via the principle of isonomy (art. 5, "caput", of the Constitution), as occurred with art. 34 of Law nº 9.249 / 95, although not referring to social security evasion (eg, art. 95, 'd', of Law nº 8.212 / 91, now art. 168-A of the CP), it was applied, extends to the taxes administered by the Federal Revenue, notably now when the social security system is extinguished, unified with the Federal Revenue of Brazil (articles 1 and 2 of Law 8.137 / 90).

5th) No confession is required! The administrative instance to which the criminal action is subordinated is an inexhaustible source of chicane (STF, HC 81611 / DF; arts. 25, §4, and 26 of Decree nº 70.235 / 72). Even the guarantee of instance, deposit (listing of assets, etc.) to the administrative appeal is imposed, the requirement for unconstitutionality is lifted (STF, RE 388359 / PE, STF Newsletter No. 462 - ADIs 1922, 1976 and 1074 STF Inf. No. 461).

Just check the procedural progress: www.conselhos.fazenda.gov.br, searching for the name of the assessed person (“taxpayer”). Large economic groups and icons of the political world, always dealing with imputations of improbity, all have a captive presence in the hierarchical instances of the Executive, power always audible to their interests.

The passport is brutal, more than 40 thousand cases (Official Letter No. 076 / GAB / PRES / CARF-MF, 09.04.09, signed by Carlos Alberto Freitas Barreto, President of CARF, answering a question from the Attorney of the Republic Rodrigo Valdez de Oliveira)!

Once the interminable administrative instance has been exhausted, there is still no guarantee of "persecutio criminis": a) provided the appeal is extinguished; b) impromptu, despite present evidence of tax evasion, the tax authority may exclude representation to the Public Ministry.

In the Judiciary itself, also the suspension of the criminal process (art. 93 of the Code of Criminal Procedure) while pending in the civil court discussion about the existence of the tax credit (TRF / 4th, Rec. Sent. Strito nº 2004.72.01.002174-7 / SC , TRF Criminal Bulletin / 4th November / 2004).

Al Capone, an American film gangster, took control of organized crime in Chicago in the late 20s, enriching himself with the sale of illegal drinks ("dry law"). He was arrested for tax evasion in 1930, sentenced to 11 years in prison and a $ 80 fine by Federal Judge James H. Wilkerson. Had the Supreme Court been the US Supreme Court at the time of Al Capone, the gangster would never have been arrested. He would be retired long before he was even called “in juditio”, still “sub judice” by the Taxpayers Council.

As the administrative-fiscal process matures, just like wine that ages in oak barrels (shelves), there will be plenty of common amnesties, a supraparty consensus of impunity, honored government after government.

FHC Government, Refis (Article 15 of Law No. 9.964 / 00), punitive pretension suspended while under the “ad eternum” installment, since the monthly amounts are decided by the tax evader himself, linked to the billing of the legal entity, thanks to his discretionary declaration, so that the projection to discharge goes beyond centuries. Folha de São Paulo, 01.02.04: “Union installs debt up to 890 thousand years”.

Lula government is always better!

There was Paes (Article 9 of Law No. 10.684 / 03). The father (Paes) of the poor is also the tax evader! Reissuing the suspension of the “persecutio criminis” by installment payment (Refis), it went further, much further, excluding the previously safeguarded limitation, that is, application restricted to evasions not yet subject to denunciation by the Parquet received by the Judiciary (art.
 9 of Law No. 10.684 / 03), so that it buried all past persecutions, including those of unappealable transit (STF, HC 81929 / RJ, STF Newsletter No. 334).

The Workers' Party regrets only the workers of the noble Criminal Advocacy en masse unemployed with the measure.

Countries without losing the benefits of Refis, such as the millennial installment plan. Among other artifices, reduce the company's revenue, transferring the activity to others, on behalf of family members, "oranges", etc._ until it is classified as micro or small, situation in which there is no limit (art. 1rd, I, of Law nº 3 / 10.684).

Example of former Senator of the Republic (DF) Luiz Estevão, with tax evasion greater than R $ 200 million (Social Security and Federal Revenue), will have 432 thousand years of term (“Former Senator Luiz Estevão becomes a small businessman”, Folha de São Paulo, 23.01.05).

Then, the Paex: exceptional installments. The exceptional Lula government made this practice ordinary.

Brandishing the defense of football clubs, a national institution (“homeland of football boots”, Nelson Rodrigues would say), the timemania came, splitting “ad eternum” (Law nº 11.345 / 06) the passive, of breaking, spreading the blessing to philanthropic entities , especially the “pilanthropic” ones (art. 4, § 12, of Law nº 11.345 / 06).

Meanwhile, Provisional Measure No. 303/06, not even voted, exhausted effectiveness, however, extinguishing, the punishment of those who requested payment breakdown when the rule is in force.

Again, Law No. 11.941 / 09, arts. 68 and 69, suspending the punitive claim ad infinitum (retroactive and henceforth) pertaining to all tax offenses, including social security misappropriation.

And what about the collection of these endless amnesties?

Folha de São Paulo, May 07.05.09, 129: “Company refinances, but does not pay taxes”. 110 thousand companies joined Refis, excluding 374 thousand for default. 186 thousand were admitted to the country, 220 thousand excluded. XNUMX companies have signed up to the Paex.

6th) In the event of the antiquity of the assessment, the tax evader's memory fades, added to the misfortune of condemnation at the administrative level and the absence of amnesty, without "streptus"! Should the Public Prosecutor's Office present a complaint, the Judiciary will further affect the payment period before its receipt (STJ, REsp nº 79.506 / DF).

As if, before the advent of Law No. 11.106 / 05, deduction of imputation for rape, taking into account the then extinct benefit of punishment (art. 107, VII, of the CP), the Judiciary could also notify the accused to marry the victim. Crowning the theater of the absurd, in the event that the victim is denied, it would be appropriate to lead her to the altar under a stick!

7º) Having received the complaint by the Judiciary, fleeing the Justice Officer, evading the summons, more than natural law, it has full procedural support (art. 366 of the CPP).

While not personally quoted, the process and the prescription will be suspended. However, not “ad eternum”. Only until the “in abstracto” action is prescribed (STJ, Rec. Esp. 7.052 / RJ). Until the prescription consumes impunity, it is enough for the tax evader not to commit the foolishness of, with his finger in hand, entering the judicial office announcing that he is there to be cited. No risk of pre-trial detention, since it presupposes the requirements of art. 312 of the Code of Criminal Procedure, inapplicable, per se, to the taxpayer not located.

8th) Such a profound impunity that it makes obsolete institutes that reward the reconsideration of delinquency. Typical cases of the attempt, voluntary withdrawal, effective repentance and later repentance (articles 14, II, 15 and 16, of the Penal Code).

If, even to consummated tax evasion, a simple confession to impunity is enough (eg, art. 337-A, § 1, of the Penal Code), without prejudice to any relevance to the attempt, withdrawal or regret.

9) In the worst case, sentenced in 1st and 2nd instances, nothing to fear. Pending appeal in the extraordinary instance (STJ, STF), prevents the provisional execution of the sentence (STF Newsletter No. 535).

It is enough to dig up arguments about the hundreds of tax and / or penal rules to give rise to a special and / or extraordinary appeal, whose admissibility, per se, prevents the execution of the sentence (STF, HC 84677 / RS - STF Newsletter No. 371).

After all, in the extraordinary instance, the extraordinary small details are irresistibly appetizing. A pathetic example is that of the Supreme Court dealing with obscene or not in the exposure of the buttocks of the theatrologist Gerald Thomas (STF, HC 83996 / RJ, STF Newsletter No. 357). Process still under instruction in the 1st instance, the STF surrenders to the ridiculous quarrel. Certainly, it will also not deny the taxpayer any discussion, however small.

The tax evader can be as transparent as possible, that is, certify, sign by means of public deed that, not only evaded, but continues and will remain evaded forever and ever.

Perhaps his arrest was declared before becoming final, which will always have a preventive character, he may flee, solemnly communicating his evasion to the Judiciary and warning that all instances should be aware of his endless resources, known that without constitutional reception art. 595 of the Code of Criminal Procedure, which obliged the convict to retire to prison to appeal (STF HC 85369 / SP, 26.03.09, STF Newsletter No. 540).

Meanwhile, while social defense follows the crucis path of the endless resource bins, the prescription runs resolutely, inexorably!

10) The lavish benefits to the tax evaders were not enough when the punitive claim was in progress, to those who still have the misfortune of being convicted, the Executive, when the enforceable claim, via pardon, obeys them, granting the extinction of the sentence upon fulfillment of only half of the already affable alternative sanctions (eg, art. 1, VI, of Decree No. 4.495 / 02).

If the Public Finance Attorney's Office is able to judge the execution of the tax debt - even worse, pledge any movable or immovable property! - sell, without blinking, and laugh, laugh scornfully at the Court (Judiciary), because she, the Court, will be the “jester of the court”, being able to do nothing but remain passive in the face of the incident, once unconstitutional prison of the unfaithful depositary (STF: RE 46634313 / SP, STF Information No. 531).

Finally, if, despite these immeasurable impunities, the tax evader is still convicted, he really deserves it! If not for the offense against the tax authorities, certainly due to the stratospheric incompetence of his lawyer, his oceanic bad luck, “case” worthy of being headlined, or the conversion of the offender to the “Church of Repentant Dodgers”.

The tax evader, by definition whoever subtracts from the public power, can receive from the purse ("sic"). The prohibitions to those who are definitely indebted to the tax authorities, such as the prohibition of bidding and contracting with the public finances, closing and opening new companies (Law No. 7.711 / 88 and Law 8.666 / 93), are unconstitutional (STF, Rel. Min. Joaquim Barbosa, ADIs 172 / DF and 394 / DF, STF No. 551).

At the end of Lula's speech, the audience (tax evaders) applaud the presidential speech standing up and enthusiastically!